Friday, March 30, 2012

May the members of a congregation leave a hierarchical denomination and take the church property with them?

You are begging the question, Bishop Johnston -- you have assumed the answer you want in the way you have chosen to phrase the query. In plainer words, you have asked: "May the members of a congregation leave a denomination which owns all that congregation's property and take the denomination's property with them?" By resorting to a rhetorical fallacy from the outset, you are off to a very bad start.

At great cost in time, effort, money and friendship — on both sides — the answer for the Episcopal Church in Virginia is no.

Well -- no, Bishop Johnston, not exactly. The answer given by one circuit court in Virginia is "no"; but the Circuit Court of Fairfax County does not speak for all the courts of Virginia. Only the Virginia Supreme Court may do that, and it has not ruled on your "question." But I agree with you about the "great cost" involved to get to such a non-definitive point. And that may cause concern for some of your other contentions, below.

Many have followed this case and shared their opinions, both supporting and criticizing our effort to return Episcopal properties to the mission of the Episcopal Church. It’s tempting for this dispute to be about property, or politics, or just plain money. But the essence of the dispute is about theology itself.

You are not making sense, Bishop Johnston. You just touted one response of a secular civil court in Virginia to your initial question as definitive -- yet now you say that the actual question is a theological one? Courts don't decide theological questions, Bishop Johnston -- nor do litigants spend upwards of five million dollars to obtain an answer to a question that courts cannot decide.

It sounds to me very much as though the dispute was about "property, or politics, or just plain money," Bishop Johnston. Why not be honest about it? Your Diocese needs the congregations' properties in order to be able to pay off the amounts you borrowed to finance your confiscations of those properties through the courts. That may not have been what the dispute was about at the outset, Bishop Johnston (when you were not there), but it is what the dispute has become now.

Many denominations have a governance (“polity”) that allows for congregational self-determination. For hierarchical bodies, such as the Episcopal, Roman Catholic, Lutheran, United Methodist and Presbyterian churches, it is quite a different matter. In these churches, local congregations represent and witness to the larger structure.

It sounds as though you are assuming facts "not in evidence," Bishop Johnston. Your phrase "represent and witness to the larger structure" stands the initial principles of your distinguished predecessor in the House of Bishops, the Rt. Rev. William White, on their head. What he wrote in 1782 was that the larger structure would be subservient to and representative of the local congregations and dioceses, not the other way around:

The continental representative body may consist of a convenient number from each of the larger districts, formed equally of clergy and laity, and among the clergy, formed equally of presiding ministers and others; to meet statedly once in three years. The use of this and the preceding representative bodies is to make such regulations, and receive appeals in such matters only, as shall be judged necessary for their continuing one religious communion.

Do you see Bishop White's use -- twice -- of that word "representative", Bishop Johnston? The larger Church was to be representative of the individual congregations, and to function only as necessary to maintain "one religious communion." Indeed, since it was to meet only once every three years, the "larger structure" was not even a continuing presence in the life of that communion.

But let's return to your history lesson, Bishop Johnston:

Our polity has been established and codified for almost 2,000 years and is the result of a theological view of what the Church is and how it should be governed.

In our tradition, it is the diocese, not the congregation, that is the basic unit of the Church. The bishop is its chief pastor.

I trust you are aware, Bishop Johnston, that it is only in terms of the polity of a worldwide communion of churches that you can describe a diocese as a "basic unit." When you speak of an individual church in that communion, however, you need to talk about "mission," and to remember that a diocese has to have parishes to fulfill that mission. A diocese can never amount to anything without parishes to do the work of mission on the ground; it might as well be a monastery. And please note your own words: you are supposed to be "the chief pastor" of the diocese -- not its chief litigator.

The Church’s clergy vow to serve under the authority of their bishop. The elected leaders of congregations do the same.

In my Episcopal church here in California, the vestry members are sworn into their office by promising to perform their duties "well and faithfully." They make no vow of submission to the Bishop, as the clergy do upon ordination (but only in the sense of obeying their Bishop "in all things lawful and honest"). I am not sure whether it is different in Virginia -- perhaps a commenter can enlighten us.

The congregations that separated from the Episcopal Church always existed within the authority of this tradition and polity. Without question, the members of these congregations were free to leave this authority, but according to the ancient polity to which they themselves subscribed, the diocese retains its right, and its generational responsibility, of oversight for the ministry of the local church.

"Oversight for the ministry of the local church" becomes rather moot once that local church votes to disaffiliate, does it not, Bishop Johnston? How can you oversee something which is no longer there -- which no longer invites you to visit, or to confirm their members?

We have a defining commitment to this ancient theology and tradition.

I think a Great Rhetorical Leap must be coming. I am not certain where this is going, but that sentence simply begs all sorts of questions: (a) "defining commitment" - what commitment, and who defined it? (b) "ancient theology and tradition" - they are by no means the same. In short, one can erect any number of conclusions on top of that sentence.

We have a fiduciary duty to ensure that properties given to the Episcopal Church are used for its mission.

Now you have jumped again from theology to law, Bishop Johnston. Moreover, there you go again, begging the question! Who said that they were "properties given to the Episcopal Church"?? And if they were, why wasn't that Church's name on any of the deeds?

And, oh, the irony in those words -- "used for its mission"! Can you not see their two meanings -- depending on how one reads the "mission" of the Episcopal Church (USA) to be?

If its "mission" is to bring the gospel of Jesus Christ to those who are ignorant of the Good News, then that is one thing. But in that case, it is very difficult, as already noted, to bring the Good News to those whom you have already driven out, and who hence want no longer to hear from you. Hanging on to the properties does not accomplish that mission, if there is no one to worship in them. Moreover, please note, as stated above, that Dioceses cannot do "mission" on their own. They need congregations for that.

But if the "mission" of ECUSA is defined by the over sixty lawsuits it has brought against former congregations, former bishops and their diocesan structures, then do you see the irony in your claiming to have a duty to "ensure" that those properties "are used for its mission"? Do you see that irony, Bishop Johnston? I thought not.

That duty, however, is theologically based; we are called to be good stewards of property given to us by our forebears. Stewardship is a theological concept: we give thanks for the gifts God has given to us all. Stewards are bound to preserve gifts for future generations. The leaders of the departed congregations have asserted that this case was never about buildings or money but about larger principles. On that we agree.

Back to theology again, Bishop Johnston -- and my head is starting to spin. Biblical "stewardship" is a far broader concept than the legal one of "fiduciary duty." A fiduciary may indeed have to bring a lawsuit if the property placed in his care for others is stolen. But a Christian steward? Dealing with property that is not legally his, but ultimately God's? And watching that property remain in the service of God as it always has, and then deciding that he has a better use for it? Such as selling it to repay debts he has unwisely incurred? Doesn't sound very "stewardly" to me, Bishop Johnston.

The matter of biblical interpretation is at the heart of the issues, and there are real differences. Differences over biblical interpretation, not authority, remain unsettled. Even so, the common, ancient tradition as to authority, polity and property stands with the diocese and its bishop.

Oh dear, oh dear. Look at what you just wrote, Bishop Johnston. "Differences over interpretation" remain "unsettled", but not "differences over authority"? Are you sure there are no differences over authority, Bishop Johnston? Then why did all of your larger congregations decide that they no longer wanted you to have any authority over them?

And in your next sentence, you just jumped the shark, Bishop Johnston. For you slipped that word "property" in, didn't you, hoping that no one would notice? So now "the common, ancient tradition as to . . . property stands with the diocese and its bishop? Is that the way the Church fathers understood things?

While you look for some citations from the Church fathers to support your outlandish claim, Bishop Johnston, I have just one question for you. If the bishop's control over parish property was always such a fixed matter of authority and polity, then why did the Episcopal Church have to pass the Dennis Canon in 1979?

Still looking for that citation, Bishop Johnston? And no answer to my question? Well, let's continue:

To be absolutely clear, as bishop of the Episcopal Diocese of Virginia, I do not want merely an outcome from the court; I seek a witness to the Gospel of Jesus Christ. I pray blessings upon those congregations who have made the painful decision to leave the Episcopal Church. They have prayed for the diocese and for me. Despite our dispute, we are being as gracious as we possibly can by providing smooth transitions for those congregations. And we must find ways to minister where we have much in common, such as in South Sudan. We both work to help those who face the perils of daily life there, most notably from the infamous Lord’s Resistance Army. There is no reason — and no excuse — why we cannot do so together. Both sides must seek ministries in which we can, in unity, serve a society and a world in desperate need. In doing so, we will find one another again as brothers and sisters in the one God and thus be better disciples of the Lord we all follow.

An absolutely fine and noble Christian sentiment, Bishop Johnston. You will find no Christian who disagrees with you in those aims. It is just too bad that their expression came after you had spent so much time rigging the rhetorical playing field.

What’s next? We begin anew, as we hope those who left the Episcopal Church will, too. Dayspring is the biblical term for a new dawn that speaks of God breaking through to do new things. Our Dayspring initiative is renewing and restarting Episcopal congregations and returning Episcopal congregations to their church homes. We will ensure that all recovered properties serve the mission and ministry of the Episcopal Church and thus serve our Lord Jesus Christ.

"New things," Bishop Johnston? Where have I heard those words before? Oh, yes -- another bishop in ECUSA said them (quoting Isaiah) just before embarking on the largest campaign of internecine warfare in the Chruch's history. "Returning Episcopal congregations to their church homes"? That very much remains to be seen, Bishop Johnston. And as for seeing that "all recovered properties serve the mission and ministry of the Episcopal Church"? I've already pointed out the extreme irony in those words, Bishop Johnston, and you do not help matters when you add the non sequitur "and thus serve our Lord Jesus Christ."

I have every confidence that our congregations will thrive. The Episcopal Church is built upon and celebrates its ancient roots, but is a faith in and for the modern world. Join us in God’s ancient yet new work.

Begging the question again, Bishop Johnston. But that's where we came in.

[UPDATE 03/30/2012: If the Bishop's remarks in the Post were intended to be read as extending an olive branch, his diocese's post-trial conduct has been anything but. Indeed, it was such as to give the lie to the good Bishop, and in light of what has now occurred, to make his remarks appear as a calculated countermove on the PR front.

Once the court fixes the amount, the bond -- in the form of cash or an irrevocable letter of credit -- is posted by the appellants to allow the case to be heard and decided by the appellate court without having to first turn over all of their bank accounts and properties to the diocese. The amount is set by the court to compensate the latter for the "loss" the diocese would incur from not taking possession of the properties immediately, and from having to wait until the Virginia Supreme Court acts on the appeal. (As noted in an earlier post, the Court has complete discretion: it can take the appeal and set it for argument and decision, or it can decline to hear it altogether, in which case the judgment below would become final if not appealed further -- see below.)

This move is probably best understood not only as a consequence of the quasi-punitive post-judgment rulings by the Court, but also as a precautionary move to keep the judgment from becoming final while we wait to see whether or not the United States Supreme Court will grant review on the three cert petitions now before it from the Supreme Courts of Georgia and Connecticut. Whether or not the Virginia Supreme Court agrees to take the appeal, a petition for certiorari could be filed with the United States Supreme Court -- asking it to review either Judge Bellows' decision directly (if the Virginia Court declines to take the appeal), or any eventual decision by the Virginia Supreme Court (if it upholds Judge Bellows' decision).

Meanwhile, in a separate announcement, the Church of the Epiphany, in Herndon, announced jointly with the Episcopal Diocese that they had reached a settlement. (Thus Epiphany will not be filing an appeal.) The terms require the Church to pay $520,750 to the Diocese over a period of two years, without interest, and to vacate their buildings by April 30 (except for their day school, which will remain through the end of the school year).

Tuesday, March 27, 2012

If I were Christopher Johnson, this would have to be presented as a new drinking game. The narrator in the video below is speaking Danish, but there are subtitles -- and the main point is President Obama, who of course speaks in English. So you don't need to know Danish or read the subtitles to get the point being made. See how many repetitions of diplomatic flattery by our "smartest President ever" you can make it through before (a) chuckling; and (b) guffawing in sheer disbelief:

And to conclude, just in time for today's arguments in the Supreme Court over the constitutionality of Obamacare's mandate, I present to you a debate clearly stating the pros and cons -- with Barack Obama arguing both sides! (H/T: Instapundit. The pro arguments are from the past two years; the con arguments are when he was running for President, and arguing against Sen. Clinton's plan.)

Monday, March 26, 2012

Over at the Foundry (H/T: Transfigurations), Mike Brownfield has a good summary of the issues involved in the historic three-day session of oral arguments starting today in the United States Supreme Court over the constitutionality of Obamacare. (The arguments cannot be watched live, but CSPAN will report them after they finish each day -- see also the link below to a recording and transcript of each day's arguments). Here is his article, with a few annotations as needed:

Rare is the occasion when the nine justices of the U.S. Supreme Court gather to hear three days of arguments, and rarer still is when it is for a case like Obamacare — one that cuts to the core of the Constitution and whose outcome could fundamentally alter the role of the federal government and its power over the people. But today the Court will do just that when it open its doors and begins weighing the arguments on the constitutionality of President Barack Obama’s seminal health care law.

Were the American people to vote on the issue, they would fall decidedly against Obamacare, as recent polls have shown. But for the Court, the decision is not as cut and dried as an up or down vote, but one that involves the interplay of a series of issues raised by those who are challenging Obamacare — more than half the States of the Union and a collection of interested organizations and private parties — and those brought by the Obama Administration, which is defending the law. And they come to the Supreme Court after conflicting appellate court rulings which have left undecided the question of whether Obamacare is permissible under the Constitution.

The central issue before the Court is whether Congress has the power under the Commerce Clause and the Necessary and Proper Clause to impose the individual mandate on the American people, forcing them to buy health insurance or pay a penalty. If the Court holds that Congress was outside the bounds of its authority, it can strike down the individual mandate, leaving the justices to then decide whether all or part of Obamacare should fall along with it.

If the Court upholds the mandate, America will be in the same position it finds itself today — facing a law that vests untold power and resources in the hands of the federal government, that transfers health care decision making from individuals to unelected bureaucrats, and that increases costs while decreasing access. In short, America’s health care crisis will get worse, not better, and future generations will be left paying the tab. What’s more, if the Court allows the individual mandate to stand, it will unhook Congress from its Constitutional leash, empowering it to regulate commerce and individual behavior in new ways never before imaginable.

There are other issues, too, besides the individual mandate. Even before the Court reaches that subject, it must broach the issue of the Anti-Injunction Act, a 145-year-old federal tax law which could bar the Court from even hearing a challenge to the individual mandate. Under that law, one cannot sue over a tax until they have paid it. If the penalty for violating Obamacare’s individual mandate is considered a tax under that law, then the challenge could not be brought at this time since the penalty has not yet taken effect. Obamacare’s challengers and even the Obama Administration agree that the Anti-Injunction Act shouldn’t prevent the Court from hearing the case, but the issue will still be heard, and some think that the Court could rely on the Act as a way of avoiding having to answer the question of whether the mandate is constitutional.

If it decides that the Act bars it from considering the constitutionality of Obamacare, the Court will not be able to address that issue until 2015. [UPDATE 03/26: The Supreme Court has posted an audio recording and transcript of this morning's arguments at this link.]

Mr. Brownfield notes that after the Court finishes the Anti-Injunction Act and constitutionality issues, then the issue of severability presents itself -- whether and how much of the law should be struck down. These issues will be addressed for 90 minutes on Wednesday morning:

If the Court finds the Anti-Injunction Act doesn’t apply, it will move on to the individual mandate. Its decision on that issue brings with it a whole other set of problems — namely, if the Court finds that the mandate is unconstitutional, it must next decide the issue of severability — whether Obamacare will operate as Congress intended if it is stripped of the mandate, or whether all or parts of the law must be struck down with the mandate. If the Court finds that the mandate is severable, the Court can strike it down and leave it up to Congress to clean up what’s left, or, as the Obama administration has recommended, it can strike down the mandate and related provisions of the law that depend on it. Finally, if the justices find that the mandate is not severable, then it will throw out all of Obamacare, and it will again be up to Congress to enact real market-based health care reforms that bring down costs while increasing access to care.

On Wednesday afternoon, the attorneys will return to address one final issue:

There is another issue, too, tied to Obamacare, and that has to do with Congress’s decision to impose new requirements on states forcing them to expand the Medicaid program and abide by the federal government’s conditions, leaving them to shoulder much of the costs while operating Medicaid according to Washington’s whims. If the states don’t comply, they could lose all Medicaid funding, putting them in an untenable position in which both their autonomy and their sovereignty collapse under Obamacare’s weight. It is up to the Court to decide whether Congress overstepped its bounds.

And Mr. Brownfield concludes with what I consider a huge irony: we have come, as a nation, to the point where we trust nine justicies to decide our future, because our elected representatives are too tied to the special interests who keep them in office to be able to act in the country's best interest:

America waits for the Supreme Court to weigh the facts and the law, to consider the precedents and the policy, and to issue a decision that will have implications far into the future. Will Congress be limited by the Constitution, or will its authority expand beyond the limits that the Founders intended? Will Americans’ liberties stand? Will Obamacare fall? No matter the outcome of the Court’s ruling in June, Congress can and should act now to repeal Obamacare and rid the land of this intolerable act.

Saturday, March 24, 2012

There have been a number of important appellate briefs filed with various courts this week. In my previous post, I wrote about the two petitions for certiorari (review) filed with the United States Supreme Court, to raise the Dennis Canon issue in conjunction with an earlier petition filed by Timberridge Presbytery of Atlanta on a similar question.

Now comes word that Bishop Jack Iker's Episcopal Diocese of Fort Worth has filed its reply brief in the case it has pending before the Supreme Court of Texas. The filing of that document completes the briefing in the case, and in due course the Court will set a date for oral argument. (In doing so, it may combine the argument with a rescheduled one in the San Angelo case, whose hearing was postponed at the last minute for personal reasons. Then again, since the San Angelo involves the Dennis Canon while the Fort Worth case does not, The Court may keep them separate.)

The Episcopal Church (USA) and its ersatz Diocese had each filed 50-page briefs in the Texas Supreme Court in response to Bishop Iker's opening brief. (Fifty pages is the maximum length the Court allows for opening or responding briefs, without special permission. Reply briefs are limited to 25 pages.) In addition, they filed voluminous appendices reproducing many of the exhibits they had submitted to the trial court. Neither the briefs nor the appendices is linked yet on the parties' website, but you may, as commenter DDR below points out, download them from the Court's official website.

Rather than file two 25-page reply briefs, Bishop Iker's attorneys asked for and received permission to file a consolidated reply brief of thirty-two pages. No doubt on Monday you will be able to download it from a link on the Episcopal Diocese's main page (as well as from the Court's website).

ECUSA and Bishop Ohl's congregations argued strenuously in their briefs for Texas to adhere to the traditional "deference-to-hierarchy" standard, as exemplified in the U.S. Supreme Court's decision in Watson v. Jones, 80 U.S. [13 Wall.] 679 (1872). That argument faces, however, an uphill battle, as the Texas Supreme Court has never officially adopted the Watson doctrine. (In its only church property case before the current ones -- a case decided in 1909 -- the Texas Supreme Court managed to sidestep the issue. Indeed, as the Court of Appeal in the San Angelocase pointed out, the resulting approach which the Court took in 1909 was indistinguishable from the later "neutral principles" approach of Jones v. Wolf, 443 U.S. 595 (1979).

In reply, Bishop Iker's attorneys argue that it does not matter which approach the Texas Supreme Court decides to adopt, because under either one, Bishop Iker's diocese prevails over the ECUSA claims. Its deeds, its charter from the State, and its governing documents are unambiguous about the fact that it controls its own property. Moreover, because ECUSA's governing documents do not attempt to place any restrictions on property owned or controlled by member dioceses, but only on the properties of parishes and missions, its claims to the diocesan properties are bogus, and require no "deference" whatsoever.

Texas is thus appearing as though it could be the first jurisdiction in the United States to issue a definitive ruling on the ability of Episcopal Church (USA) member dioceses to leave that organization with their property and bank accounts intact. Of course, the fact that the Episcopal Church did nothing to stop the Confederate dioceses from withdrawing en masse after the outbreak of the Civil War, and waited patiently for them to return afterward without ever going to court over the matter, speaks volumes.

The Episcopal Church (USA)'s priorities have changed markedly in 150 years -- and not for the better. That it would consume its ever-dwindling resources over such a dispute is nothing to be emulated, or admired. (Thankfully, PCUSA thus far has had to deal only with the withdrawal of individual parishes, and not regional presbyteries or synods.) Instead of chasing after dioceses no longer willing to participate in its apostasy and decline, ECUSA should concentrate on getting its own house in order.

Both of those churches have a provision in their governing documents which purports to declare and impose a trust in their favor on the individual properties of each of thousands of their member parishes. Innocently continuing to maintain and contribute to the improvement of their church buildings, the congregations in those churches never realize that they do not really own their own property -- at least, not until they start to disagree with the drift of their denominations. Then, if they seek legal advice, they all too often find out that their national church has a chokehold on their properties: if they vote to leave, they cannot remain in their buildings, or keep any donated communion vessels, altar cloths or vestments.

In his majority opinion, after holding that Georgia courts constitutionally did not have to defer to church authorities regarding the ownership of parish property, Justice Blackmun invited churches with a national superstructure to modify their governing documents. He wrote: "Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal." (443 U.S. at 606.)

To many State courts, this was taken as a pronouncement from on high that henceforth, national churches could bypass with a single stroke, and for all the parish properties in their jurisdiction, the various requirements that a legally recognizable trust could be established only in a written instrument, signed by the property owners themselves, i.e., the several parishes. Overlooked was Justice Blackmun's additional observation (emphasis added):

And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

Do you see the language I have bolded? In a legal sense, when a national church, through its legislative body, simply promulgates a rule or canon imposing a nationwide trust which the parishes are not told about, it is hard to understand how such a "result" may be said to embody the intent of both parties to the transaction -- namely, the church and each individual parish, acting as a settlor (creator) of the trust in favor of the national church. And yet State court after State court has held that it could imply the requisite consent to the imposition of such a trust, merely from the fact of the parish's membership in the larger organization as a whole, in which it "recognized" or "acceded to" the authority of the greater entity.

But no other body or organization -- religious or otherwise -- has been granted the privilege of creating enforceable trusts in such a unilateral fashion. This is the crux of the three petitions for review: how could a simple obiter dictum (a remark made as an aside, in the course of a decision) suddenly become the law of the land, sufficient to override all state and local laws to the contrary? That is not how the law is supposed to work, and if he were still alive, one would hope that Justice Blackmun would disavow any such intent behind his gratuitous statements.

For in practical effect, that result amounts to granting special State privileges to just one type of church. And that "establishment" of one type of church over all other types, and over all other kinds of property owners as well, quite plainly is contrary to the Establishment Clause of the First Amendment, as applied to the several States through the Fourteenth Amendment of the United States Constitution.

The Supreme Court created the current mess of First Amendment law which has burgeoned in consequence of Justice Blackmun's dictum, and it will take the Supreme Court to clean it up. Later, as I have the chance, I will upload the petitions to a site where you may read them, and I will comment further on their arguments.

[UPDATE 03/24/2012: The Petition filed by Christ Church may be downloaded from this link, and the Bishop Seabury Petition from this link. A full copy of the earlier Petition filed by Timberridge is here.]

For now, we may take heart that the United States Supreme Court has three petitions in front of it, each of which raises the identical question for it to resolve.

I wrote at the time about the Council's somewhat tortuous process of producing the budget (see here and here). Anyone could read between the lines to see that there were different factions vying to implement their respective agendas, and that their clashes at the Council meeting produced confusion, despair at the disjointed process, and general disgruntlement with the leadership.

Having spent some time with the draft budget in the interim, I now understand more clearly the frustrations to which the news reports of the Council's meeting alluded. The end result of three days' deliberations was not a real budget at all. Instead, it was what the Executive Committee could cobble together in haste before the meeting ended, and then get the members to vote for because they were all out of time, and had their planes to catch. (Yes, the Executive Council of the Church -- meant to function as the interim arm of the General Convention during the 154 out of every 156 weeks in the triennium in which the latter is not meeting -- itself has an Executive Committee, to function in the interim of the 50.7 out of every 52 weeks every year during which the Council is not meeting. Are you beginning to see how all this works?)

Indeed, as another blogger has already pointed out, and as the document itself blatantly admits (see below), the budget is not even balanced the way a true budget should be. Take a look first at the summary ("collapsed") budget on pages 1 and 2 of 20 of the .pdf version of the budget linked in the first sentence above. Line 4 ("Total Income") shows $104,851,849; Line 38 ("Total Expense") on page 2 shows, remarkably, $104,851,773 -- just $76 dollars of expense less than income -- and who can complain about a budget that shows a $76 surplus? Surely that is a balanced budget, right?

Wrong -- welcome to the budgetary gargoyles of ECUSA. They consist of an elaborate ring of Ptolemaic phantasms and Gregorian grotesqueries designed to ward off closer examination and scrutiny, which might harm the powers that be in the Church itself. Watch closely, and learn how they work.

Go to page 3 of 20, the first page of the detailed budget, and look at line 6 under "Income". It is titled "Investment Draw for Development Office", and equals $3,766,300. What does that mean? An "Investment Draw" is taking money out of the Church's invested funds -- essentially, its endowment funds held in trust, and donated by long-ago generations for "the mission of the Church." By this one line, the Executive Council signed on to pulling $3.8 million out of the Church's seed corn, to be spent on its "Development Office". What is that? (You won't learn much by clicking on the link.) In the world of non-profit organizations, which live on contributed funds, the function of a "development office" is to develop new sources of funding, mostly through finding new donors to the cause.

On the revenue side -- and this is not something we’ll achieve in the next two or three years -- the Episcopal Church has not had a broad capital campaign to build its endowment for 25 years.

It does not have a development office. It will now have a development office.

In the last couple of years we created the beginning of a mission-funding office. The office charter is to develop large donations from wealthy individuals for new ministries. After a few years, the church recognized that it needs more than just these limited new programs. It needs to grow its overall endowment and sources of revenue. It’s beginning to think of having a real development office, the way universities or other non-religious, not-for-profits have maintained development offices.

In February 2010, therefore, ECUSA was just beginning to have "a real development office." In the next paragraph of the interview, Mr. Barnes defined it as one which would not "be afraid" to ask people for money -- like those "wealthy Episcopalians who died in the last few years whose probated wills gave minimal amounts to their parishes, probably because the parishioners were never asked."

Now go to page 10 of 20, and take a look at lines 362-366, under "Development Office." Notice the historical figures given in Column F for the previous triennium. Remarkably, in this Expense section of the budget, the first line (362) shows income, projected to be raised by the Development Office over the period from its start-up in 2010 through the end of the current year, of $94,448. The next two lines show two cost items: "Staff Costs" of $1,079,613, and "Development Office Other Costs" (taking prospective donors to the Four Seasons Restaurant, or to Sardi's and a Broadway show?) of $303,701.

Adding up lines 363 and 364, and subtracting the income raised (shown in line 362), produces the net Development Office expense figure of $1,305,166 given in line 366.

Before going further, let us pause to put these historical figures into perspective. From the time it got started in 2010, through December 31, 2012, the Church's existing Development Office is projected to produce a grand total of $94,448 in new contributions (i.e., not included in the "Other Income" category of line 9 on page 3, because otherwise that would be double counting).

But during that same period, the Development Office cost the Church $1.4 million to operate. That is to say, the Church spent $1 for every seven cents the Development Office brought in. And given that track record, what did the Executive Council decide to do?

As already noted, it doubled down -- no, tripled down. It decided to pull from the Church's invested funds -- the moneys which the Development Office is supposed to augment -- a total of nearly $3.8 million over the next three years.

And what did the Council project the Church would receive in exchange? Take a look at lines 362-365 on page 10 of 20 again, in Column R -- there are no projected revenue or cost figures for the next triennium. Instead, there is only the cryptic notation: "Amounts in this section to be reallocated in consultation with Management." But the Council did furnish a "Development Office Total" expense amount, in line 366: it is the figure of $2,516,300.

Where did that figure come from? As we shall shortly see, the Council snatched it out of God's blue sky, in order to make its draft "budget" appear to be balanced.

Take a look now at the text over at the far right of line 366 (page 10 of 20 again). It says (I have added the bold, for emphasis):

Also NOTE: Line 6. This expense should equal income on line 6; will be corrected at General Convention. Start-up funds will be provided by accessing endowment assets.

The "income" on line 6, as already noted, is not "income" at all, except in a strict bookkeeping sense. It was $3,766,300 pulled out of the Church's endowment funds. And set off against this amount is only $2,516,300 of expenses.

Do you begin to see the hat trick that has been pulled here? The draft budget approved after three days of wrangling in the Executive Council shows the Church taking out $3,766,300 of endowment to cover just $2,516,300 of expenses. Where did the remaining $1,250,000 of endowment money go? And why is that amount ($1,250,000) such a conveniently round figure? (Compare it to that $2,516,300 of expenses, or to the $3,766,300 to be taken out.)

If there is $1,250,000 more money being taken from endowment than is being spent, then there is only one answer to those questions: this draft budget in fact is $1,250,000 out of balance. Since it shows revenues over expenses of just $76 after all is added up and subtracted, then the endowment funds are being used to plug that hole in the budget. And as far as the Executive Council was concerned, it will be the problem of General Convention to correct the imbalance.

This rigging of the books to the tune of $1.25 million is taking place after Executive Council determined that the 2012-2015 projected income would be $4.6 million less than the income received in the current triennium (page 1 of 20, line 4, Column H). In reality, therefore, if we subtract out the raiding of the endowment funds to fund Development and "balance" the budget, then projected income is really $8.4 million less for the coming triennium. (That is the sum of the $4.6 million "apparent" drop and the $3.8 million taken from endowment. Endowment funds, as any accountant will tell you, should never be used to cover operating losses.)

We have barely scratched the surface of this budgetary sham. (Scroll through the document and look how many times the messages like the "to be allocated later" one on lines 362-365 appear in place of actual figures.) For Executive Council to have produced such a joke after all the accumulated time, input and money devoted to its production over the last year is truly a travesty -- which in turn is an indicator of the poor health of the Church, especially at the top.

Recall the words of one Council member, quoted in this earlier post, who said: “This was not a strategic exercise, but this was a mathematical exercise.”

Yes, it certainly was -- but not an exercise in normal mathematics, because the Executive Council's figures simply do not add up.

The Layman article succinctly explains what is so significant about this particular filing:

Joining Timberidge attorney Michael Kendall in this case is Carter G. Phillips, managing partner of the Washington, D.C. office of Sidley Austin LLP. Phillips has argued 74 cases before the U.S. Supreme Court, more than any other attorney currently in private practice. Before his association with Sidley Austin, he served as a law clerk for U.S. Supreme Court Chief Justice Warren Burger and as assistant to the United States Solicitor General, arguing nine cases before the U.S. Supreme Court on behalf of the federal government.

And with Mr. Phillips' expert assistance, notice how clearly the petitioners have phrased the question which they would like the Court to decide:

Whether the ‘neutral principles’ doctrine embodied in the Religion Clauses of the First Amendment permits imposition of a trust on church property when the creation of that trust violates the state’s property and trust laws.

This is the same question which the Dennis Canon presented (or presents) in South Carolina, Texas, Ohio, Pennsylvania, Nebraska, North Carolina, New Jersey, Connecticut, Tennessee, and in all the other jurisdictions where it has come up in the last dozen or so years -- with the exception only of California and New York. In their collective foolishness, the legislatures of each of those two states decided to enact statutes which grant the Episcopal Church a special privilege to bypass their own Statutes of Frauds. (And for that very reason, those privilege statutes would probably themselves be open to challenge, under the Establishment Clause of the First Amendment.)

The petition makes excellent reading for those who would like the most current overview of the law in this area. It includes, of course, discussion of cases in still other jurisdictions (e.g., Louisiana, Missouri and Arkansas) which involve PCUSA, and not ECUSA -- but given the wording of the applicable provision of PCUSA's Book of Order, the issue presented is the same.

Petitioners advance two simple reasons for why the Supreme Court should accept the case for review: (1) “The judgment implicates a deep and mature conflict over whether a trust may be imposed on church property that secular law would not allow”; and (2) “Review is warranted because the decision below is wrong.” (The latter point, of course, would not be a reason on its own sufficient to take the case, because the Supreme Court does not use its jurisdiction simply to correct mistakes of law.)

Under the first ground, the petitioner's argument makes three points. First, the State courts, as noted above, are widely divided on the question of whether "neutral principles" allows certain kinds of churches to create trusts in violation of state property laws. Second, the Timberridge case itself provides an ideal vehicle for resolving the issue, since the Georgia Supreme Court ruled that for PCUSA to have to have obtained the express written consent of every presbytery to the imposition of a trust would have placed an undue "burden" on PCUSA under the Free Exercise Clause. In doing so, it read dictum in Jones v. Wolf, 443 U.S. 595 (1979) to require that any burden on churches in complying with State law should be "minimal." The brief argues:

To the contrary, when this Court allowed state courts to rely on “neutral principles,” to resolve church property disputes, it explained that churches could adopt express trust provisions that would bind civil courts “to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.” Jones, 443 U.S. at 606. The Georgia Supreme Court’s ruling disregards Timberridge’s intent and discounts the lack of a legally recognizable trust under Georgia law.

The third point is that the conflict among State courts has become widespread, to the degree that the doctrine of "neutral principles" itself is threatened. Under one interpretation, certain kinds of nationally organized churches receive a deference which is not accorded to other types of churches without any national organization. And other the other interpretation, "neutral principles" are truly neutral, because the Courts apply the same real property law to churches as they do to all other litigants.

This is a concise and well-presented argument. It is backed by one of the finest Supreme Court litigators in the profession. We may take some hope that, by this June, we should know whether ECUSA should have any cause for concern about its scorched-earth campaign of intimidation and bullying, based on the Dennis Canon.

All of the Court's major pronouncements in church property cases since 1969 have been in the course of its reviewing decisions from the Supreme Court of Georgia. We are about to see whether the Timberridge case will furnish the occasion for yet another one.

[UPDATE 03/12/2012: There is word that Christ Church Savannah is preparing a similar petition for filing. Two are always better than one, and with both decisions stemming from the same Georgia Supreme Court, but involving two different national Churches and their different trust provisions, this joinder could provide just the impetus which the U. S. Supreme Court needs to get involved.]

Tuesday, March 13, 2012

The underground is abuzz in Anglican blogland. No details are available as yet for publication, only the general report that a major development will be ripe for announcement starting next Monday, March 19. Some of your most trusted (or alternatively, depending on your philosophy, most despised) commentators are rumored to be involved. The technical details, with the support of none but the very best in the business, are apparently awesome. But mum's the word for now, so as not to steal anyone's thunder.

So watch for what happens starting March 19 -- you heard it here first. Being Anglican is about to take on a whole new dimension, and the Anglican domain will never again be the same!

Sunday, March 11, 2012

I would like to use a lesson from our Church's history to make a point about how far we have distanced ourselves from our honorable forbears in just over a century and a quarter of meeting in general convention as the Episcopal Church (USA).

We have all been looking forward to it for a long time; we have talked of it, prayed for it, and discussed among ourselves what was likely to be done. There has been great interest everywhere in this last Convention, for we knew that questions were coming up before it equal in importance to any which have been raised in our own time.

First in the minds of all was the Prayer Book of the Church. All have heard so much of this, that they could not but feel anxious as to what would be done.

Then many of us knew that there would be an earnest effort to revise the Judicial System of the Church, and to create some form of courts of appeal.

The question of Church Unity was in the air, and it was expected that the Convention would say something about it.

Then, too, we knew that there was a committee to report on the great question of Marriage and Divorce; and those who feel the tremendous urgency of this matter looked with anxiety for some distinct utterance upon it.

Besides these things, some great changes were expected with regard to the Church's Missionary work . . .

Last, but by no means least in importance, we expected that the question of changing the Name of the Church would be brought up in some form; and we eagerly anticipated the discussion that would follow.

These were the principal things that were in hearts and minds of Churchmen as they watched, or thought of, the gathering of the deputies at Chicago.

Given this list, it is interesting to see which subject the Rev. Osborne takes up first:

I told you that the work of the Convention is partly of a Missionary character: let me speak briefly of this first. You may have noticed that nearly one-third of the time of Convention was taken up with missionary reports and deliberations on missionary work. You must not think that this was wasted time. It was right that the time should be so spent. The Church is charged with a mission to preach the gospel to every creature, to stretch out her arms to bring them into the fold; and not one moment of the time given to this work was wasted. As a result of these deliberations, the whole plan of missionary work has been changed and re-organized, and a great missionary council has been formed. We may well believe that the result of this will be an increased power and energy on the part of the Church, and the gathering into her arms of multitudes who have never yet heard the name of Jesus Christ.

Just for comparison: will General Convention at Indianapolis this summer spend one-third of its time discussing the missionary work of the Church? -- That's right; and no, I was not jesting.

Next, the Rev. Osborne summarizes the changes which the Convention made to the Book of Common Prayer. Some of these are surprising to those of us who grew up believing that the 1928 BCP was the way things must have always been:

First, and chief of all, we have restored to us the Gospel Canticles,--Magnificat, or the Song of the Blessed Virgin Mary; Nunc Dimittis, or the Song of Simeon; and the whole of Benedictus, the Song of Zacharias. A hundred years ago these were dropped out of our Prayer Book, because in those days some thought that they had but a local and temporary signification; that, however beautiful these songs may have been on the lips of those who first sung them, they had no meaning for the Church now. And there was, beside, a mistaken thought that there was something in the use of these Canticles which made our Church unduly like the Church of Rome. . . .

Another restoration is the word "again" in the Apostles' Creed; so that we shall say, "The third day He rose again from the dead," as the Creed has been recited by every English-speaking branch of the Church except our own ever since it was first translated. . . .

The report continues in a vein which I find wholly, though unintentionally, humorous -- given what the Church calls itself today:

3. Leaving the Prayer Book, we come next to the proposed change of the Name of the Church.

I. First, we may note that no name was proposed in place of that which we bear. The motion was made by a distinguished lay deputy [Mr. Corning Judd of Chicago] to strike out the words "Protestant Episcopal" from our laws and formularies; leaving the title simply the "Church in the United States of America," until such time as it should seem well that another name should be adopted. In the course of the discussion other names were suggested, as "The American Church," "The Church in America," "The Anglican Catholic Church in America;" but none of these came up before Convention for discussion: the motion was simply to strike out the former title.

The motion was lost . . .

"The Church in the United States of America" -- now, there's a title to commend itself to the aspirations of 815 Second Avenue for ECUSA to be all things to all men!

After reporting about the failure of the Convention to adopt a proposal to create courts of appeal -- a measure which did not pass until after the constitutional reforms of 1901 -- the Rev. Osborne next mentioned two items on the agenda which were so important that their consideration was postponed to the next Convention, for want of sufficient time to deal with them properly. The first was the position of the Church on marriage and divorce:

. . . The state of things in our country with regard to our marriage laws, and still more with regard to divorce, is enough to fill any one with alarm. The whole stability of the family life of the nation is shaken at its foundation; and with the loss of stability there, the whole nation is in peril. It is a matter for thankfulness that the Church of God has waked up to a realization of our condition, and is endeavoring to rouse both her own children and the nation at large.

. . .

There are two points brought out and emphasized. Let me tell them. First, Holy Scripture and the Church of God allow divorce for one cause, and one cause only, and that is ADULTERY. No other cause can be recognized by any Christian man true to God, his Word, and the Church. There may be reasons why people must live apart, but no other cause than this breaks the marriage bond.

The second point is this, the guilty one in a divorce for this cause can never marry again during the lifetime of the other.

O tempora! O mores! How the times have changed -- General Convention 2012 will, as already reported here, adopt for trial use rites of blessing for the same-sex unions, and will most probably trample on the Church's Constitution in doing so. But already in 1886, as the good Rev. Osborne reported, "the whole stability of the family life of the nation is shaken at its foundation . . . the whole nation is in peril." And that was over a proposal to allow divorce on grounds other than adultery -- what would he have to say about the action to be taken just four months from now?

The real reason which caused me to turn at this point to the doings of a long-ago General Convention, however, is not any of the matters reported thus far. No, it was the question of Church unity, which the Rev. Osborne saves for last:

We all desire Christian unity, and long for a time when the various divisions of Christendom shall be healed; but let us understand exactly what we mean by "Christian unity" or "the organic unity of Christian churches."

For many years there has been a desire for this . . . . But by that unity we understood a bringing together of the various branches of Christ's Church,--the Anglican, the Roman, and the Eastern,--that some way might be found so that there might again be one fold and one Shepherd, and that all other persons should be brought into that fold and be saved. For this unity we can still pray and work.

As noted, General Convention did not enact any resolutions on the subject of unity; it ran out of time. The House of Bishops, however, published a significant report on Christian unity -- significant, because two years later the Lambeth Conference of 1888 adopted the latter portion of it as a comprehensive statement of the four essential elements on which any such unity should be based:

1. The Holy Scriptures of the Old and New Testaments as the revealed Word of God.

2. The Nicene Creed as the sufficient statement of the Christian Faith.

3. The two Sacraments,--Baptism and the Supper of the Lord,--ministered with unfailing use of Christ's words of institution and of the elements ordained by Him.

4. The Historic Episcopate, locally adapted in the methods of its administration to the varying needs of the nations and peoples called of God into the unity of His Church.

These four points became thereafter known as the Chicago-Lambeth Quadrilateral. Lost in the splendor of their enunciation, however, was the preamble to them which the House of Bishops adopted as well. And it is that preamble to which I finally want to call your attention, in this survey of the Church's memorable past.

For General Convention 2012 will also be taking up a proposal to sign on to the Anglican Covenant. There is little prospect of its doing so -- indeed, the activists in ECUSA have been the most outspoken of any province in denouncing the radical character of the proposed Covenant as thoroughly "un-Anglican." Lately, they have been joined by voices from the Church of England, as it also considers approving the Covenant in its several dioceses before taking up the matter finally in General Synod.

It seems that the denouncers of the proposed Covenant fear that its mechanisms, once in place, will furnish the means of inhibiting ECUSA and the Church of England, under pain of being no longer regarded as members of the Communion, from doing what they see fit to do, in all matters of faith and worship, regardless of what the rest of the Communion may decide or even feel about such matters.

Those who entertain such fears might, if they can do nothing else about them, take some small comfort in hearing the brave words of the Bishops sitting at Chicago in 1886, as they expressed their desire for unity in Christ's church (I have added the emphasis, to make it easy for them):

We, Bishops of the Protestant Episcopal Church in the United States of America, in Council assembled as Bishops in the Church of God, do hereby solemnly declare to all whom it may concern, and especially to our fellow-Christians of the different Communions in this land, who, in their several spheres, have contended for the religion of Christ:

1. Our earnest desire that the Savior's prayer, "That we all may be one," may, in its deepest and truest sense, be speedily fulfilled;

2. That we believe that all who have been duly baptized with water, in the name of the Father, and of the Son, and of the Holy Ghost, are members of the Holy Catholic Church.

3. That in all things of human ordering or human choice,relating to modes of worship and discipline, or to traditional customs, this Church is ready in the spirit of love and humility to forego all preferences of her own . . . .

Wednesday, March 7, 2012

In 2004, a special group of Chefs called the Lambeth Commission issued a recipe for Anglican fudge. After kicking it around for the past eight years, the members of the Anglican Communion -- that brand of restaurants, originating in England, whose house fudge is a specialty -- seem to be in just as much disagreement as ever about what should be in the officially sanctioned recipe.

It seems that in 2003, the American branch of the franchise, known as the Episcopal Cafés (USA), decided that its recipe for fudge would from then on include walnuts, even though they are not mentioned in the Bible. (The only nuts the Bible names are almonds and pistachios, but the Episcopalians contended that walnuts were not unknown to early Christians, who never went on record as condemning them.) As for the Canadian branch (called the Anglican Cafés of Canada), it announced that henceforward, its member restaurants were free to vary the recipe on their own, and include walnuts or not as they chose.

The reaction from the rest of the Communion was swift. All the Chief Chefs gathered in London in October 2003, and issued a communiqué. They declared that fudge had always been fudge, and that to introduce officially sanctioned innovations into it at this stage unilaterally, without the consent of the rest of the branches of the Communion, was un-Anglican, and would lead to brand deterioration. So they commissioned the special report (the "Windsor Report") from the Lambeth Commission, and the rest is history.

Here is what the Windsor Report had to say about the decisions by the innovators:

The question that has been raised in relation to both the Episcopal Cafés (USA) and the Anglican Cafés of Canada is that in relation to matters of real and acknowledged importance to them, they have not attached sufficient importance to the impact of their decisions on other parts of the Communion. This in turn has prompted reactions from other franchises and individual Chief Chefs which offend our understanding of communion in significant ways.

Accordingly, the Commission recommended its own version of fudge, based on historical usage. It stressed that it would not be introducing any new levels of process into the Communion:

The Commission does not believe it necessary to introduce any new tier of formal process, or forum in which these questions should be addressed, but we take seriously the question of acceptability, and would want to emphasise that it goes far beyond the question of adding walnuts. What is needed is a change of outlook on the part of those involved in the process of baking fudge to take account of our bonds of affection and interdependence.

Then it recommended that the American branch

be invited to express its regret that the proper constraints of the bonds of affection were breached . . . and that such an expression of regret would represent the desire of the Episcopal Cafés (USA) to remain within the Communion; [that]

pending such expression of regret, those Chefs who took part as bakers of the walnut fudge should be invited to consider in all conscience whether they should withdraw themselves from representative functions in the Anglican Communion. We urge this in order to create the space necessary to enable the healing of the Communion. We advise that in the formation of their consciences, those involved consider the common good of the Anglican Communion, and seek advice through their Chief Chef and the Archchef of Canterbury; [and that]

the Episcopal Cafés (USA) be invited to effect a moratorium on the further production of walnut fudge until some new consensus in the Anglican Communion emerges.

Similar recommendations were made regarding the Canadian branch. Then the Commission noted that problems were already arising with regard to those Americans and Canadians who were unable to tolerate walnut fudge. Since they could no longer obtain the traditional product in their dioceses, many such members had turned to other franchises in the Communion, and begged them to send them some. This was causing brand-name confusion, which the Lambeth Commission could not endorse:

The Anglican Communion upholds the ancient norm that all the Christians in one place should be united in their fudge-making. The Commission believes that all Anglicans should strive to live out this ideal. Whilst there are instances in the polity of the Communion that more than one franchise exists in one place, this is something to be discouraged rather than propagated. We do not therefore favour the establishment of parallel franchises.

The Windsor Report closed with a recommendation that a Covenant be adopted by all the branches of the franchise, which would lay stress upon the ingredients of the traditional recipes (not just the one for fudge) handed down since Elizabethan times and served in Anglican restaurants, and which would establish an orderly process for changing any of those recipes in the future. It attached a draft such Covenant for the Communion's consideration.

The draft Covenant did not propose any new bodies or structures in the Communion, other than a "Council of Advice" to advise and assist the Archchef of Canterbury in carrying out his tasks in respect to the Communion. It asked that each member franchise appoint a Liaison Officer to the Communion, and then spelled out the process of resolving any differences, as follows:

On discernment by the Officer of any contentious communion issue, the Anglican Communion Liaison Officer shall liaise with the Chief Chef [of the province] and the Secretary General of the Anglican Communion.

Following such liaison, the Officer or Secretary General may submit the matter to the Archchef of Canterbury.

The Archchef may issue such guidance as he deems fit or, as appropriate, refer the matter to the Council of Advice for guidance and, if necessary, the Chief Chefs’ Meeting, the Anglican Consultative Council, or the Lambeth Chefs' Conference to resolve the issue having regard to the common good of the Communion and compatibility with this covenant.

Notice that this original draft called only for the Archchef to "issue such guidance as he deems fit" -- in other words, the traditional recipe for Anglican fudge. In the process of developing the Covenant further, however, additional proposals for more layers, structures and processes were added, and the Anglican Consultative Council (consisting of Chefs, waiters and busboys, and regular paying customers) was given ultimate say about who would be able to use the brand (not really a new power, but one which it has had since the Lambeth Chefs' Conference first authorized the former's Constitution in 1968).

Now it is coming upon eight years afterward, and there is less agreement within the Communion than ever. Not only have the American and Canadian branches continued to serve walnut fudge, but many in them have insisted their restaurants will not be party to any Covenant which could restrict either their ability to decide what goes on the menu, or what ingredients any item contains, or whether or not they were still entitled to use the "Anglican" brand. Other provinces have already agreed to the proposed (and much-reworked) Covenant, but now questions have arisen whether the headquarters branch in England itself, under the Archchef of Canterbury, will adopt it.

Meanwhile, as the debate over the Covenant continues, a rival franchise in North America is growing, which calls itself the Anglican Cafés in North America (ACNA), and which serves only the traditional fudge. Americans and Canadians are thus not without alternatives, but there is as yet no indication on the part of the Archchef as to whether he will authorize the rival group to use the Communion brand in its signs and advertising.

The Anglican Communion, as is evident from what is now taking place in its ranks, is coming apart. There are those who say it was never meant to be a unified franchise in the first place, but they seem to be begging the question. How can something which was never together in the first place come apart?

What seems likely, if events continue on their current course, is that two brands will emerge from the conflict, if not more. The walnut faction has the highest-paid Chefs and the fanciest restaurants, but the traditional faction prides itself on the home-cooked character of its meals, which can be served up almost anywhere, and without requiring a fancy kitchen. In the present economy, the image of the walnut-fudge restaurants is seen as more and more of a luxury, and as a result its patrons are steadily finding other places of nourishment. Indeed, it is said that a restructuring will have to occur soon, in which some Chefs will be laid off.

The ACNA group, in other words, seems poised to give Episcopal Cafés a run for its money. The latter, in an effort to boost its business, is reportedly considering whether to add raisins or pecans to its fudge -- both apparently have their advocates from within.

Innovation, or tradition? In matters Anglican, as always, it comes down to who makes the best fudge.

Saturday, March 3, 2012

I have about given up trying to delineate the gulf that separates the left from the right in this country. With every passing day of every week, it becomes wider and wider.

Talking about it does no good, either. To the left, a person from the right talking about their agenda, and describing what it does in no uncertain terms, is engaging in insults and opprobrium, therefore does not deserve a fair hearing, and should be silenced. They cannot understand in any objective way what the criticism of their agenda actually is. And the left is incapable of even entertaining an initiative, if it comes from the right.

The result is an ever-widening gulf. What is scary is that as their separation increases, neither side seems willing to try to reverse the trend. Each is pushing the extreme without any interest in accommodating the other.

Want examples? Start with Obamacare, and the following justification for her recently announced directives to all insurers to provide contraceptive and abortion coverage by Secretary Kathleen Sebelius:

Health and Human Services Secretary Kathleen Sebelius told a House panel Thursday that a reduction in the number of human beings born in the United States will compensate employers and insurers for the cost of complying with the new HHS mandate that will require all health-care plans to cover sterilizations and all FDA-approved contraceptives, including those that cause abortions.

“The reduction in the number of pregnancies compensates for the cost of contraception,” Sebelius said. She went on to say the estimated cost is “down not up.”

“So you are saying, by not having babies born, we are going to save money on health care?” Murphy asked.

Sebelius replied, “Providing contraception is a critical preventive health benefit for women and for their children.”

Murphy again sought clarification.

“Not having babies born is a critical benefit. This is absolutely amazing to me. I yield back,” he said.

Sebelius responded, “Family planning is a critical health benefit in this country, according to the Institute of Medicine.”

What is the gulf here? I will spell it out: for the left, contraception and abortion are critical methods of "family planning" in order to limit family size. It becomes "rational" to them, therefore, to provide such methods at no cost. And if insurers have to provide coverage for fewer and fewer people from cradle to grave in the future, it will cost them less. So they will be willing (the reasoning goes) to provide now for contraception and abortion "at no cost to their insureds."

(There is one slight problem with this reasoning, which another Republican legislator pointed out: if it is in the insurance companies' interest to provide abortion and contraception coverage at no cost, then why aren't they providing that coverage for free now? Why does the Government have to order them to provide it?)

For the right, however, the population trends in advanced countries are already alarming. Europe and Japan are on a decline which will soon be irreversible, and which will lead to their essential irrelevance in a little over fifty years. The United States teeters on the edge of not replacing with new births each year the members of society which it loses through death; it is saved from absolute decline only by its high rate of immigration. But if the Sebelius policies kick in as intended, the United States will be shoved into joining Europe and Japan on the road to extinction, in a world dominated by Chinese, Indians and Muslims.

Result: the left sees nothing wrong in encouraging abortion and contraception as a means of shrinking future population growth. The right sees the left's policy as ensuring the decline of America (to say nothing -- at least, when it comes to abortion as a means of birth control -- of being immoral).

How does one begin to try to bridge this gap? I for one see no possible way. One side is going to have to gain power, and stay in power long enough, to make its policies irreversible after they become entrenched enough.

The problem is that the left's policies are a one-way ratchet: once the country is bankrupt and childless, there will be no rescue except through revolution. The right's policies, on the other hand, are always capable of being reversed by the next election -- because they do not depend on the entrenchment of government. They instead seek to maximize individual liberty and freedom, and there will always be those who will want to curb such things in "the interests of society as a whole."

The result is that, for the right, every election is a brand-new battle, to defend territory previously won from being taken away. But for the left, each time they prevail in an election offers an opportunity for further encroachment on individual liberties (think: first toilets, then light bulbs, and now religious freedom), with the result that it becomes harder and harder to reverse course.

So there will be no bridges between left and right, for the foreseeable future. The left wants nothing of the right's cockamamie notions, and the last thing the right wants to do is compromise with the left's policies in order to have just a little less of them.

Thursday, March 1, 2012

After Judge Randy Bellows handed down his decision on January 10, awarding all of the real property of seven ACNA parishes to the Diocese of Virginia, and awarding to it also all their personal property (bank accounts, furnishings, equipment and everything else) as it existed as of the date(s) the Diocese filed suit against them, the parties began wrestling with the implications of his decision.

The Diocese of Virginia and ECUSA brought a motion for prejudgment interest on all of the moneys in the various accounts from the date(s) they brought their lawsuits. Judge Bellows denied that motion (quite properly, since the Diocese's right to those moneys was not even in play until after the appeal to and remand from the Virginia Supreme Court).

Meanwhile, the ACNA parishes filed a motion for Judge Bellows to reconsider his ruling that the Diocese was entitled to be given all moneys which the parishes had on deposit as of January 31/February 1, 2007 (the dates on which the Diocese began its lawsuits against the parishes). They pointed out that long before those dates, individual parish members had been restricting their donations and pledges, so that none of the money so given could be paid to the Diocese or the national Church as part of the parishes' contributions to those entities.

They asked Judge Bellows to revise his ruling so as to take into account the individual donors' wishes, which they argued trumped the implied trusts in favor of the Diocese and ECUSA which he had found had been imposed over time on the real properties. The Attorney General of the Commonwealth of Virginia, in his capacity as overseer of all charitable operations under Commonwealth law, joined in their motion for reconsideration.

. . . At the very most, the Congregations' evidence demonstrated only that some (apparently large) fractions of their donors did not want their contributions to benefit the Diocese or TEC. That is a far cry from "stat[ing] a specific purpose." A donor who restricts his contribution to the use of a particular orphanage in Uganda, for example, states a specific purpose, and in the hands of a donee church that is known as a restricted fund. It must be disbursed for the specific purpose for which it was donated. But the Congregations have proved, at most, that their donors made unrestricted contributions to Episcopal churches with nothing more than a hope or expectation that their donations would not benefit the Diocese or TEC - hopes or expectations that were not and could not be realized, as the work of every Episcopal church is conducted under the oversight and in furtherance of the mission and ministry of the Diocese and TEC.

What a remarkable argument! Note, first of all, that it is the same type of argument 815 uses to justify its raiding of ECUSA's trust funds, which donors specified were for use in "the mission of the Church", to pay for litigation expenses against the withdrawing dioceses: recovering property in a lawsuit is deemed to be in "furtherance" of the Church's "mission." And because the donors did not always use more specific language, 815 feels free to twist the purposes of their long-ago gifts to advance its own scorched-earth policies against former Episcopalians.

Note, secondly, the reason ECUSA says the ACNA donors' hopes and expectations "were not and could not be realized": because "the work of every Episcopal church is conducted under the oversight and in furtherance of the mission and ministry of the Diocese and TEC." Are Episcopalians in the pews even aware that all of their local operations are "conducted under the oversight . . . of the Diocese and TEC"? When is the last time a Bishop or ECUSA ever had anything to say about a parish budget? Where is the evidence of this "oversight", pray, of each of the parishes by the Diocese of Virginia -- let alone by 815?

[UPDATE 03/03/2012: One further note of irony: the final order (linked to in the paragraph above) goes through all of the elaborate steps needed to accomplish the transfers of title from the various parishes to the Bishop. These involve corporate resolutions, deeds, and petitions to the Circuit Court in each county where the parishes are located, etc. Yet, under Judge Bellows' ruling, neither ECUSA nor the Diocese had to take any formal steps whatsoever to impose on each parish property an unwritten, implied trust which resulted in the forfeiture of all parish property in the event of a vote to disaffiliate! Once again -- go figure about how Virginia law works -- after the Virginia Supreme Court disemboweled the Division Statute, it is a crazy patchwork of rules for churches, with wholly different treatments for different denominations.]

I am not informed of the details on the ground in Virginia. It seems to me, however, that this ruling puts the ACNA parishes in a severe (and extremely unfair) financial bind. For example, if they had been building up a kitty in 2006 and early 2007 in anticipation of filing petitions to withdraw and keep their properties under Virginia's Division Statue (section 57-9), then Judge Bellows says they have to account to the Diocese for all of the money that was in their bank account as of the end of January 2007!

This is regardless of the fact whether they used some of that money to pay their attorneys and other litigation expenses from 2007 on, or to pay mortgage payments on their properties (which reduced the amount of the encumbrance on what they now have to hand over to the Diocese). If, just to use hypothetical numbers, a parish had $600,000 on hand in its bank account on February 1, 2007, and if since that date it spent all of that money on litigation and property expenses, then the parish now has to take $600,000 out of the moneys its parishioners have given it in the interim -- and which Judge Bellows has said does not have to be turned over -- and hand it over, nonetheless.

And this is regardless of whether that $600,000 as of February 1, 2007 had all been given by parishioners who had no intention of allowing the parish to send any of their money to go to the Diocese or ECUSA. (Even the Diocese conceded that a "large" fraction of the parish thought so -- and actually, the testimony at the trial was in some cases that 100% thought so.) "Doesn't matter," says Judge Bellows. "When you gave the money to the church, it was still affiliated with the Diocese and ECUSA, so from that moment forward, it was all held in an implied trust for them -- which I am now enforcing."

This argument proves too much, in my view. For the Dennis Canon says, in its second sentence (emphasis added):

The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

Thus if the parish was deemed (notwithstanding the votes taken in 2006) a member of the Diocese and ECUSA right up until February 1, 2007 -- sufficiently for purposes of imposing an implied trust on all of its property -- then as of that date, the parish also had full power and authority to spend it as they wished, so long as it was spent on parish purposes. Judge Bellows used the February 1 date as a cutoff for when parish members could no longer reasonably be considered as thinking they were donating to a unit of the Episcopal Church. But from the point of view of the Diocese and ECUSA, those parishes never left the Diocese or the Church -- neither as of February 1, 2007, or afterward.

It follows that if Judge Bellows is correct about his implied trust reasoning, and if the Diocese and ECUSA are correct that parishes may never leave, but only parishioners can, then the churches' use of their money after February 1, 2007 was, under the Dennis Canon's express language, fully authorized and free from any claim of trust because those churches still were a part of ECUSA, and because they spent their money on church purposes, which preserved them. (The church buildings were occupied, in ECUSA's view, by people who were no longer "Episcopalians." But that does not mean that non-Episcopalians were not authorized to write parish checks to pay parish expenses -- so long as the parishes themselves remained a part of ECUSA, as Judge Bellows held that they were.)

The occupying parishioners, as Judge Bellows recognized, were free to keep their pledges from going to ECUSA or the Diocese from and after that date, and so neither ECUSA or the Diocese has any claim on moneys contributed by the parishioners from and after February 1, 2007. But it is illogical and inconsistent to hold that the parishes could not continue to use the moneys held before that date on parish purposes, such as maintaining the buildings, paying the mortgages, and paying attorneys to defend lawsuits brought against the parish.

Those were perfectly proper uses of the funds under the Dennis Canon, and hence cannot form the basis of a claim this much after the fact. The same result follows if the payments were regarded as "rent" for the use of the property, since paying rent for a church building is a proper use of parish money.

In other words, had ECUSA and the Diocese wanted to keep those moneys intact, they should have brought a request for an injunction against their being spent, pending the outcome of the lawsuit. That they did not do so constitutes a waiver of any claim now that the funds were not spent as permitted under church law as codified by the Dennis Canon.

I am aware that Judge Bellows held that the Dennis Canon did not create a proper trust under Virginia law. But ECUSA and the Diocese argued over and over in the Virginia litigation that the Dennis Canon merely "codified the Church's existing trust doctrine" -- i.e., expressed the terms of the implied trusts already in effect as of the Canon's presumed enactment by General Convention in 1979. So to apply the language of the Canon in this way is not in any sense contrary to what Judge Bellows held.

For ECUSA and the Diocese, the rule is obviously "Heads we win; tails you lose." The first sentence of the Dennis Canon lets them claim all of the parishes' property because they could not leave the Church, while the second sentence has to be read to mean the opposite of what it says. The parish can certainly continue to spend its money to keep up the grounds, the buildings and the mortgage, but they are to receive no credit for having done so and having thereby ensured that the property would still be valuable and in good condition when the Diocese took over possession.

This is why I say that Judge Bellows' ruling, and the arguments made by the Diocese and ECUSA which he apparently accepted, prove too much. Logic is logic, and it is obvious that neither he nor the Diocese nor 815 bothered to think through the consequences of their reasoning.

I also fail to see why, in light of these illogical positions and the Judge's ruling adopting them, any parishioner in any Episcopal parish of Virginia would ever donate a dime to their parish again. For what they might think is theirs today, is, as we are seeing here, not theirs at all, but is wholly under the control and oversight of the Diocese and of the national Church. Never mind, of course, that the latter two refuse all liability for what may happen at the level of the parish -- you're on your own there, folks.

Because, don't you see? In Virginia, it's "heads we win; tails you lose" -- all day, all the time.

A Guide to This Site

This page will provide you with a convenient listing of posts by category. In order to use the features of this site, you need to check all the past posts in a given category, since each new post assumes a certain familiarity with what has gone before.

Subscribe

A Gentle Warning to Readers

This Weblog has a different purpose from that of---oh, say Instapundit. The topics here do not lend themselves to short, pithy treatment. Also, there are many legal colleagues in the audience; I include material that may appeal more to one who has been trained in that profession. So, be forewarned; this may not be easy reading. No apologies---some days you might just have to work harder! Should you have any complaints, first observe these preliminaries, and then post your specifics on the RantBoard.

Comment Policy

Good dialogue is fostered when people sign their own posts. I reserve the right to moderate all comments, again in the interests of a good dialogue, and I thank those who are minded to contribute to that goal. If you are having trouble posting a comment because of the registration requirements, please email me (see my Profile) and I will try to help.

A Gallimaufry of Weblogs

Listed below are the Weblogs I commend to your attention. A listing is not an endorsement of content. For an explanation of the groupings (by analogy to Tennyson's "Charge of the Light Brigade"), please see this post, and this; the reference to "cannon" is not pejorative (although it may, depending on its character, be regarded as onomatopoetic). Authors who object to their listing here, either on specific grounds or no grounds at all, may contact me for correction or removal. (Removal is automatic after a month or so of inactivity.) I will also consider requests and recommendations to be added.Note: only the best of the conservative political blogs are listed here (under "Cannon Fodder", below). For a comprehensive roll of political blogs on the left, please visit the Liberal Curmudgeon (site currently afflicted by malware; link to be supplied when the site is certified as clean).